You asked for information on:

1. the methods of federal recognition available to an Indian tribe;

2. the criteria that a tribe must meet for recognition;

3. the Bureau of Indian Affairs (BIA) tribal recognition process, including the deadlines and opportunities for comment in the process;

4. how a federally recognized tribe gains approval for a casino and what Connecticut law requires; and

5. any information on the Bush administration's plans for recognizing tribes.

We answer each question below. For further information on all these issues, see OLR reports 2000-R-1066, 2001-R-0343, 2001-R-0699, and 2002-R-0425. We have also attached the following General Accounting Office (GAO) report, which is a comprehensive study of the tribal recognition process: Improvements Needed in Tribal Recognition Process, GAO-02-49, November 2001.

METHODS OF FEDERAL RECOGNITION AVAILABLE

Historically, tribes have been recognized by Congress and the executive branch (mainly BIA). Federal courts have also determined tribal status for purposes of specific cases before them, usually involving the applicability of a statute to a tribe or the tribe's eligibility for certain government services. Federal recognition acknowledges the tribe as a sovereign entity and permanently establishes a government-to-government relationship between the tribe and the United States. A federally recognized tribe is "eligible for services and benefits from the federal government available to other federally recognized tribes. . . and entitled to the privileges and immunities available to other federally recognized tribes" (25 CFR § 83. 12).

Congress has "plenary power" concerning Indian affairs, drawn from its authority under the U. S. Constitution to "regulate commerce with foreign nations, among the several states, and with Indian tribes" (U. S. Constitution Art. I, § 8). Congress has acknowledged several tribes in recent years, including the Mashantucket Pequots, which it acknowledged in the Mashantucket Pequot Settlement Act (25 USC § 1751 et. seq. ).

Congress has delegated the power to acknowledge Indian tribes to the Department of Interior's BIA. In 1978, BIA established a regulatory framework to provide uniformity to the process (25 CFR §§ 83. 1 to 83. 12). The regulations are based on the U. S. Supreme Court's definition of a tribe as "a body of Indians of the same or similar race, united in a community under one leadership or government, and inhabiting a particular though sometimes ill-defined territory" (Montoya v. United States, 180 U. S. 261, 266 (1901)).

BIA's regulatory process is now the most commonly used tribal recognition process. But, tribes may still seek recognition outside this regulatory process, such as through Interior Department administrative decisions. The Mohegans were federally recognized in 1994 by administrative decision under 25 CFR 83. According to the GAO, of the 31 tribes that BIA has recognized since 1960, 17 were recognized through administrative decisions (10 before and seven after the regulatory process was established).

BIA CRITERIA FOR FEDERAL RECOGNITION

Under BIA's regulations, a tribe may petition the interior secretary for recognition. The petition must meet seven criteria. It must contain:

1. a statement of facts identifying the tribe as an American Indian entity on a substantially continuous basis since 1900;

2. evidence that a predominant portion of the group has existed as a distinct community from historical times to the present;

3. evidence that the tribe has maintained political authority or influence over its members as an autonomous entity from historical times to the present;

4. a copy of the tribe's governing document, including membership criteria, or, if it does not have a formal governing document, a description of its membership criteria and governing procedures;

5. an official membership list, any available former lists, and evidence that current members descend from a historic tribe or tribes that combined into a single autonomous political entity;

6. evidence that the tribe consists mainly of people who are not members of an acknowledged North American Indian tribe; and

7. a statement that the tribe is not the subject of the congressional legislation that has terminated or forbidden the federal trust relationship (25 CFR § 83. 7).

BIA's FEDERAL RECOGNITION PROCESS

Letter of Intent to Petition

A tribe or group of Native American descendants initiates BIA's federal recognition process by submitting a "letter of intent to petition" to BIA. It must submit, then or later, a formal, documented petition addressing the seven criteria for recognition.

BIA has 30 days to acknowledge receipt of the letter (or documented petition, if receipt of the letter of intent was not previously acknowledged) and 60 days to publish notice of it in the Federal Register and local newspaper(s). BIA must also notify the governor and attorney general of the state where the petitioner is located and any recognized or petitioning tribes that appear to have a historical or current relationship with the petitioner or an interest in the petition. The notices give interested parties an opportunity to comment on the petition.

Preliminary Review

After BIA receives the documented petition, it must conduct a technical assistance (TA) review to determine if the petition is complete. The petitioner may choose to revise or supplement the petition or ask BIA to proceed with active consideration using the material already submitted.

BIA must also investigate any petitioner whose documented petition and response to the TA review demonstrate little or no evidence that it will meet criteria 5 through 7 above. If BIA's review clearly establishes that the group does not meet these criteria, BIA must issue a proposed finding declining to recognize the tribe or group. If the review cannot clearly show that the tribe does not meet the three criteria, BIA must list the petition for active consideration of all seven criteria.

Ready for Active Consideration

BIA informs a petitioner when its petition is ready to be listed for active consideration. Petitions classified as "under active consideration" are being evaluated by BIA to determine if the petitioners are entitled to federal recognition. The notification date determines the order in which BIA considers petitions.

Active Consideration

When the petition comes under active consideration, BIA notifies the petitioner and interested parties (i. e. , third parties that can establish a legal, factual, or property interest in the recognition decision).

Within one year (with a possible 180-day extension) after BIA notifies the petitioner that it has begun active consideration of its documented petition, BIA's assistant secretary must publish his proposed findings in the Federal Register. He must also summarize the evidence, reasoning, and analysis that are the basis for his decision and provide copies to the petitioner and third parties.

Public Comment, Response, and Consultation Period

A 180-day comment period (which may be extended for up to 180 days for cause) follows the publication of the proposed findings. The petitioner and any interested party may submit comments and evidence. The petitioner has at least 60 days from the close of the comment period (depending on the nature of the comments) to respond. At the end of the response period, BIA consults with the petitioner and interested parties to determine an equitable time for considering arguments and evidence submitted during the response period.

Final Determination

After considering the comments and petitioner's response, the assistant secretary makes a final determination on the petitioner's status. He must publish a summary of the final determination in the Federal Register within 60 days of the date when he began considering written arguments and evidence rebutting or supporting the proposed finding (unless he extends the date because of the extent and nature of the arguments and evidence).

The determination takes effect 90 days after it is published, unless the petitioner or a third party asks the Interior Department's Board of Indian Appeals to reconsider it.

Requests for Reconsideration

The board will consider requests that allege that (1) new evidence could affect the determination, (2) much of the evidence relied on was unreliable or of little probative value, (3) the research appears inadequate or incomplete in a material respect, or (4) there are reasonable alternative interpretations of the evidence not previously considered that would substantially affect the determination. Within 120 days after the final determination is published, BIA must determine whether a reconsideration request alleges any of these grounds and notify the petitioner and interested parties.

The board may affirm the decision or remand it to the assistant secretary for reconsideration. If it affirms the decision but finds grounds for reconsideration other than the four listed above, it must send the decision to the interior secretary, who may ask the assistant secretary to reconsider the petition after receiving additional comments from the petitioner and interested parties.

The assistant secretary must issue a reconsidered determination within 120 days of the board's remand or the secretary's request for reconsideration.

APPROVAL FOR A CASINO

Federal Indian Gaming Regulatory Act (IGRA)

IGRA provides a statutory framework for resolving jurisdictional, regulatory, and legal issues about gaming on federally recognized Indian reservations (25 USC §§ 2701 through 2721). Under IGRA, Class III gaming (including slot machine, casino, lottery, and pari-mutuel wagering) is lawful on federally recognized Indian reservations only if (1) authorized by a National Indian Gaming Commission-approved tribal ordinance; (2) located in a state that permits such gaming for any purpose by any person, organization, or entity; and (3) conducted pursuant to a negotiated tribal-state compact.

Under IGRA, a tribe wanting to conduct casino gaming must ask the state to negotiate a compact (25 USC § 2710(d)(3)(A)). If the parties have not agreed on the compact's terms within 180 days of the tribe's request, the tribe may file suit in federal district court, claiming that the state has not negotiated in good faith (25 USC § 2710(d)(7)(A)(i)). If the court agrees with the tribe, it must order the state and tribe to conclude a compact within 60 days (see Seminole Tribe v. Florida discussed below). If they fail to do so, each must submit its last best offer to a court-appointed mediator, who must choose the one which best comports with IGRA and other federal laws (25 USC §§ 2710(d)(7)(B)(iii) and (iv)).

If the state accepts the mediator's proposal, it becomes the compact. If it does not accept, the interior secretary must prescribe procedures (1) consistent with the proposed compact the mediator selects and the provisions of IGRA and relevant state laws and (2) under which Class III gaming may be conducted on the Indian lands over which the tribe has jurisdiction (25 USC §§ 2710(d)(7)(B)(vi) and (vii)). The procedures are a legal substitute for a negotiated tribal-state compact. (This was the case with Connecticut and the Mashantucket Pequots. )

The secretary must publish notice of approved compacts (or procedures, where applicable) in the Federal Register. The compact and procedures have the force of federal law.

In the case of the Mashantucket Pequots, the tribe sued the state when it refused to negotiate. After the court process failed to produce a compact, the interior secretary prescribed procedures for conducting Class III gaming at Foxwoods.

Exemption from the Statutory Process

Several states have taken issue with IGRA. In Seminole Tribe of Florida v. Florida, the Supreme Court upheld, on a five to four vote, an 11th Circuit Court ruling that federal courts must dismiss a tribe's IGRA lawsuit when the state asserts an 11^th Amendment immunity defense (517 U. S. 44 (1996)). The Court ruled that a tribe cannot use the federal court procedures set forth in IGRA to force a state to negotiate a gaming compact.

The decision was based on the 11^th Amendment to the U. S. Constitution, which the courts have interpreted as meaning that, in most cases, states cannot be sued in federal courts without their consent. The justices concluded that (1) the states had not consented to the lawsuits and (2) the Indian Commerce Clause of the U. S. Constitution, which Congress relied on in enacting IGRA, does not give that body the power to override state sovereign immunity.

After Seminole, several states indicated that they would assert an 11^th Amendment defense to avoid being sued to negotiate a tribal-state gaming compact. Arguing that this would "create an effective state veto over IGRA and therefore stalemate the compacting process," the Interior Department adopted regulations allowing it to prescribe procedures as a legal substitute for a negotiated compact in cases where a tribe's lawsuit was barred by the 11^th Amendment. Florida and Alabama have sued the department on the grounds that it has exceeded its authority. The case is pending.

Connecticut's Casino Approval Process

State law requires both houses of the legislature to approve a tribal-state gaming compact or an amendment to one. Either house can reject it. But the law does not specify any legislative procedures or who must negotiate the compacts. This law took effect on June 20, 1994, after the Foxwoods procedures and Mohegan compact took effect.

The Mashantucket Pequot's application was litigated and the interior secretary promulgated gaming procedures for the tribe. Governor Weicker negotiated the Mohegan compact but did not submit it to the legislature. He vetoed legislation requiring the submission of compacts to the legislature and signed the agreement with the Mohegans on the same day (April 25, 1994).

The attorney general, in an opinion dated May 18, 1994, decided that absent legislation, the governor could enter into a compact without submitting it to the legislature. He also stated that certain parts of the Mohegan agreement, such as the transfer of state land, required legislative action.

The legislature overrode the governor's veto and enacted the compact approval law that is currently in place.

Both the Mashantucket Pequot procedures and the Mohegan compact contain the same provision on amendments. An amendment requires a written agreement of the parties and takes effect when the interior secretary publishes notice of it in the Federal Register (§17(c) in both compacts).

BUSH ADMINISTRATION'S PLANS FOR TRIBAL RECOGNITION

We contacted BIA's Branch Acknowledgement and Research (BAR) office, which is the BIA unit that conducts research for tribal recognition. BAR has declined to respond, asking instead that we submit a written request to the BIA assistant secretary. As far as we are able to ascertain from the media and anecdotes, BIA (1) has rescinded recognition granted to several tribes during the Clinton administration and is in the process of reevaluating the decisions and (2) has put some decisions on hold, including the preliminary recognition granted to the Nipmuc Nation of Sutton, Massachusetts. BIA is also considering changes in the recognition process. This is in response to the November 2001 GAO report that cited weaknesses in the process and indicated that the process was ill equipped to provide a timely response.

We will be writing BIA and will send you a copy of its response when we get it.

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